A number of States, including New Jersey, have recently enacted Civil Union or Domestic Partnership statutes which grant same sex couples some, but not all, of the rights and privileges of marriage.
In many instances persons who are now entering into Civil Union or Domestic Partnerships have been previously married, and a typical provision in their Marital Settlement Agreements or Divorce Judgments is that alimony of spousal support will terminate if they cohabit with an unrelated person in a relationship "analogous or equivalent to " a remarriage.
The issue has already arisen in several States as to whether a Civil Union or a Domestic Partnership with a person of the same gender is a relationship "analogous or equivalent to" remarriage which should terminate a person’s right to alimony from a prior spouse. The matter is further compounded when the agreement or divorce judgment specifically refers to "cohabitation with a person of the opposite gender".
Arguments have been made that "remarriage" means remarriage, not something short of marriage and that if the parties chose to limit the cohabitation to persons of the opposite gender, their contract should be strictly interpreted and their support should continue notwithstanding a same gender Civil Union or Domestic Partnership.
A recently decided and well reasoned decision by the Virginia Court of Appeals held that a Civil Union was "analogous" to remarriage and terminated a Civil Union partner’s prior alimony award. Stroud v. Stroud 49 Va. App. 359, 641 SE 2nd 142 (2007).
The Virginia Appellate Court reasoned that the phrase "analogous to remarriage" does not mean remarriage, but rather, by definition, analogous means "similar in some way" to remarriage. The Court held that an analysis of the particular relationship in issue supported the conclusion what it was, indeed, similar in a number of ways to marriage and, therefore, was a legitimate basis to terminate one of the parties alimony from a prior relationship.
By comparison a widely publicized case from the State of Oregon (for which a citation could not be found) recently came to an exactly opposite conclusion.Ultimately the highest Court of every State which has adopted Civil Union or Domestic Partnership Statutes will have to address this issue, and, perhaps, the United States Supreme Court will address the issue on a Equal Protection argument.
Until the issue has been addressed and resolved by a New Jersey Appellate Court, little or nothing can be done with regard to existing agreements judgments. However, competent representation now requires that this issue be considered in the negotiation and drafting of current agreements or judgments. If it is the intention that alimony should terminate in the event of a same gender cohabitation it should be clearly so stated. If not, the converse should be specifically stated.
To omit a specific reference will leave the parties open to an unknown and presently unpredictable future determination.